trivial-patent.html (12864B)
1 <!--#include virtual="/server/header.html" --> 2 <!-- Parent-Version: 1.96 --> 3 <!-- This page is derived from /server/standards/boilerplate.html --> 4 <!--#set var="TAGS" value="essays laws patents" --> 5 <!--#set var="DISABLE_TOP_ADDENDUM" value="yes" --> 6 <title>The Anatomy of a Trivial Patent - GNU project - Free Software Foundation</title> 7 <!--#include virtual="/philosophy/po/trivial-patent.translist" --> 8 <!--#include virtual="/server/banner.html" --> 9 <!--#include virtual="/philosophy/ph-breadcrumb.html" --> 10 <!--GNUN: OUT-OF-DATE NOTICE--> 11 <!--#include virtual="/server/top-addendum.html" --> 12 <div class="article reduced-width"> 13 <h2>The Anatomy of a Trivial Patent</h2> 14 15 <address class="byline">by <a href="https://www.stallman.org/">Richard 16 Stallman</a></address> 17 18 <p>Programmers are well aware that many of the existing software patents 19 cover laughably obvious ideas. Yet the patent system's defenders often 20 argue that these ideas are nontrivial, obvious only in hindsight. And 21 it is surprisingly difficult to defeat them in debate. Why is that?</p> 22 23 <p>One reason is that any idea can be made to look complex when 24 analyzed to death. Another reason is that these trivial ideas often look 25 quite complex as described in the patents themselves. The patent 26 system's defenders can point to the complex description and say, 27 “How can anything this complex be obvious?”</p> 28 29 <p>I will use an example to show you how. Here's claim number one 30 from US patent number 5,963,916, applied for in October 1996:</p> 31 32 <blockquote> 33 <p>1. A method for enabling a remote user to preview a portion of a 34 pre-recorded music product from a network web site containing 35 pre-selected portions of different pre-recorded music products, using 36 a computer, a computer display and a telecommunications link between 37 the remote user's computer and the network web site, the method 38 comprising the steps of:</p> 39 40 <ul> 41 <li>a) using the remote user's computer to establish a telecommunications 42 link to the network web site wherein the network web site comprises 43 (i) a central host server coupled to a communications network for 44 retrieving and transmitting the pre-selected portion of the 45 pre-recorded music product upon request by a remote user and (ii) a 46 central storage device for storing pre-selected portions of a 47 plurality of different pre-recorded music products;</li> 48 </ul> 49 50 <ul> 51 <li>b) transmitting user identification data from the remote user's 52 computer to the central host server thereby allowing the central host 53 server to identify and track the user's progress through the network 54 web site;</li> 55 </ul> 56 57 <ul> 58 <li>c) choosing at least one pre-selected portion of the pre-recorded 59 music products from the central host server;</li> 60 </ul> 61 62 <ul> 63 <li>d) receiving the chosen pre-selected portion of the pre-recorded 64 products; and</li> 65 </ul> 66 67 <ul> 68 <li>e) interactively previewing the received chosen pre-selected portion 69 of the pre-recorded music product.</li> 70 </ul> 71 </blockquote> 72 73 <p>That sure looks like a complex system, right? Surely it took a real 74 clever guy to think of this? No, but it took cleverness to make it seem 75 so complex. Let's analyze where the complexity comes from:</p> 76 77 <blockquote> 78 <p>1. A method for enabling a remote user to preview a portion of a 79 pre-recorded music product from a network web site containing 80 pre-selected portions</p> 81 </blockquote> 82 83 <p>That states the principal part of their idea. They put selections 84 from certain pieces of music on a server so a user can listen to 85 them.</p> 86 87 <blockquote> 88 <p>of different pre-recorded music products,</p> 89 </blockquote> 90 91 <p>This emphasizes their server stores selections from more than one 92 piece of music.</p> 93 94 <p>It is a basic principle of computer science that if a computer can do 95 a thing once, it can do that thing many times, on different data each 96 time. Many patents pretend that applying this principle to a specific 97 case makes an “invention.”</p> 98 99 <blockquote> 100 <p>using a computer, a computer display and a telecommunications 101 link between the remote user's computer and the network web 102 site,</p> 103 </blockquote> 104 105 <p>This says they are using a server on a network.</p> 106 107 <blockquote> 108 <p>the method comprising the steps of:</p> 109 <p>a) using the remote user's computer to establish a telecommunications link to the network web site</p> 110 </blockquote> 111 112 <p>This says that the user connects to the server over the network. 113 (That's the way one uses a server.)</p> 114 115 <blockquote> 116 <p>wherein the network web site comprises (i) a central host server 117 coupled to a communications network</p> 118 </blockquote> 119 120 <p>This informs us that the server is on the net. (That is typical of 121 servers.)</p> 122 123 <blockquote> 124 <p>for retrieving and transmitting the pre-selected portion of the 125 pre-recorded music product upon request by a remote user</p> 126 </blockquote> 127 128 <p>This repeats the general idea stated in the first two lines.</p> 129 130 <blockquote> 131 <p>and (ii) a central storage device for storing pre-selected 132 portions of a plurality of different pre-recorded music 133 products;</p> 134 </blockquote> 135 136 <p>They have decided to put a hard disk (or equivalent) in their 137 computer and store the music samples on that. Ever since around 1980, 138 this has been the normal way to store anything on a computer for rapid 139 access.</p> 140 141 <p>Note how they emphasize once again the fact that they can store 142 more than one selection on this disk. Of course, every file system 143 will let you store more than one file.</p> 144 145 <blockquote> 146 <p>b) transmitting user identification data from the remote 147 user's computer to the central host server thereby allowing the 148 central host server to identify and track the user's progress through 149 the network web site;</p> 150 </blockquote> 151 152 <p>This says that they keep track of who you are and what you 153 access—a common (though nasty) thing for web servers to do. I 154 believe it was common already in 1996.</p> 155 156 <blockquote> 157 <p>c) choosing at least one pre-selected portion of the 158 pre-recorded music products from the central host server;</p> 159 </blockquote> 160 161 <p>In other words, the user clicks to say which link to follow. That 162 is typical for web servers; if they had found another way to do it, 163 that might have been an invention.</p> 164 165 <blockquote> 166 <p>d) receiving the chosen pre-selected portion of the 167 pre-recorded products; and</p> 168 </blockquote> 169 170 <p>When you follow a link, your browser reads the contents. This is 171 typical behavior for a web browser.</p> 172 173 <blockquote> 174 <p>e) interactively previewing the received chosen pre-selected 175 portion of the pre-recorded music product.</p> 176 </blockquote> 177 178 <p>This says that your browser plays the music for you. (That is what 179 many browsers do, when you follow a link to an audio file.)</p> 180 181 <p>Now you see how they padded this claim to make it into a complex 182 idea: they combined their own idea (stated in two lines of text) with 183 important aspects of what computers, networks, web servers, and web 184 browsers do. This adds up to the so-called invention 185 for which they received the patent.</p> 186 187 <p>This example is typical of software patents. Even the occasional 188 patent whose idea is nontrivial has the same sort of added 189 complication.</p> 190 191 <p>Now look at a subsequent claim:</p> 192 193 <blockquote> 194 <p>3. The method of claim 1 wherein the central memory device 195 comprises a plurality of compact disc-read only memory 196 (CD-ROMs).</p> 197 </blockquote> 198 199 <p>What they are saying here is, “Even if you don't think that 200 claim 1 is really an invention, using CD-ROMs to store the data makes 201 it an invention for sure. An average system designer would never have 202 thought of storing data on a CD.”</p> 203 204 <p>Now look at the next claim:</p> 205 206 <blockquote> 207 <p>4. The method of claim 1 wherein the central memory device 208 comprises a RAID array drive.</p> 209 </blockquote> 210 211 <p>A RAID array is a group of disks set up to work like one big disk, 212 with the special feature that, even if one of the disks in the array 213 has a failure and stops working, all the data are still available on 214 the other disks in the group. Such arrays have been commercially 215 available since long before 1996, and are a standard way of storing 216 data for high availability. But these brilliant inventors have 217 patented the use of a RAID array for this particular purpose.</p> 218 219 <p>Trivial as it is, this patent would not necessarily be found 220 legally invalid if there is a lawsuit about it. Not only the US 221 Patent Office but the courts as well tend to apply a very low standard 222 when judging whether a patent is “unobvious.” This patent 223 might pass muster, according to them.</p> 224 225 <p>What's more, the courts are reluctant to overrule the Patent 226 Office, so there is a better chance of getting a patent overturned if 227 you can show a court prior art that the Patent Office did not 228 consider. If the courts are willing to entertain a higher standard in 229 judging unobviousness, it helps to save the prior art for them. Thus, 230 the proposals to “make the system work better” by 231 providing the Patent Office with a better database of prior art could 232 instead make things worse.</p> 233 234 <p>It is very hard to make a patent system behave reasonably; it is a 235 complex bureaucracy and tends to follow its structural imperatives 236 regardless of what it is “supposed” to do. The only 237 practical way to get rid of the many obvious patents on software 238 features and business practices is to get rid of all patents in those 239 fields. Fortunately, that would be no loss: the unobvious patents in 240 the software field do no good either. What software patents do is put 241 software developers and users under threat.</p> 242 243 <p>The patent system is supposed, intended, to promote progress, and those who 244 benefit from software patents ask us to believe without question that they do 245 have that effect. But programmers' experience shows otherwise. New theoretical 246 analysis shows that this is no paradox. (See <a 247 href="https://web.archive.org/web/20000815064858/http://www.researchoninnovation.org/patent.pdf">researchoninnovation.org/patent.pdf</a> 248 on web.archive.org.) There is no reason why society should expose software 249 developers and users to the danger of software patents.</p> 250 </div> 251 252 </div><!-- for id="content", starts in the include above --> 253 254 <!--#include virtual="/server/footer.html" --> 255 <div id="footer" role="contentinfo"> 256 <div class="unprintable"> 257 258 <p>Please send general FSF & GNU inquiries to 259 <a href="mailto:gnu@gnu.org"><gnu@gnu.org></a>. 260 There are also <a href="/contact/">other ways to contact</a> 261 the FSF. Broken links and other corrections or suggestions can be sent 262 to <a href="mailto:webmasters@gnu.org"><webmasters@gnu.org></a>.</p> 263 264 <p><!-- TRANSLATORS: Ignore the original text in this paragraph, 265 replace it with the translation of these two: 266 267 We work hard and do our best to provide accurate, good quality 268 translations. 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For web pages, it is ok to list just the latest year the 289 document was modified, or published. 290 291 If you wish to list earlier years, that is ok too. 292 Either "2001, 2002, 2003" or "2001-2003" are ok for specifying 293 years, as long as each year in the range is in fact a copyrightable 294 year, i.e., a year in which the document was published (including 295 being publicly visible on the web or in a revision control system). 296 297 There is more detail about copyright years in the GNU Maintainers 298 Information document, www.gnu.org/prep/maintain. --> 299 300 <p>Copyright © 2006, 2021 Richard Stallman</p> 301 302 <p>This page is licensed under a <a rel="license" 303 href="http://creativecommons.org/licenses/by-nd/4.0/">Creative 304 Commons Attribution-NoDerivatives 4.0 International License</a>.</p> 305 306 <!--#include virtual="/server/bottom-notes.html" --> 307 308 <p class="unprintable">Updated: 309 <!-- timestamp start --> 310 $Date: 2021/09/22 09:19:58 $ 311 <!-- timestamp end --> 312 </p> 313 </div> 314 </div><!-- for class="inner", starts in the banner include --> 315 </body> 316 </html>